55 U.S.

568
14 How. 568
14 L.Ed. 545

SAMUEL VEAZIE AND LEVI YOUNG, PLAINTIFFS IN

ERROR,
v.
WYMAN B. S. MOOR.
December Term, 1852

THIS case was brought up from the Supreme Judicial Court of the State
of Maine, by a writ of error issued under the 25th section of the Judiciary
Act.
The facts in the case are stated in the opinion of the court.
It was argued by Mr. Paine, for the plaintiffs in error, and by Mr. Kelley
and Mr. Moor, for the defendant in error:
The following propositions were contended for, in an elaborate brief, filed
by the counsel for the plaintiffs in error:
1. That the constitutional power of Congress in question, embraces the
right to adopt any means reasonably necessary, in their opinion, to the
successful prosecution of commerce among the States and with foreign
nations.
2. That Congress has adopted, as such means, the whole commercial
marine of the country, every part of which, as a unit, is under their entire
control and regulation, without regard to the waters on which the
navigation is carried on.
3. That to constitute a part of this commercial marine, no other
qualifications are necessary than those prescribed by Con gress in the
several acts regulating the registry and enrolment of vessels, and such
registry or enrolment is evidence of a compliance with the prescribed
conditions.
4. That any vessel so enrolled, being licensed, has an unrestricted right to
navigate all the navigable waters of the United States, wherever they may

be found serviceable to its use.

5. That the power of Congress to regulate commerce is as extensive on
land as water, and is irrespective of both;that these compose no part of
commerce or navigation, but are subject to be adopted as ways or
thoroughfares of it, whenever they may be required by the wants of either;
and that in legislating upon the subject, Congress has not discriminated
between one class or body of navigable waters and another, but has made
all such waters free for the uses of navigation, wherever any portion of the
commercial marine of the country may exist.
6. That under the statute of 1831, March 2, 3, the plaintiffs' boat is
expressly included as provided for by said act, and is thus embraced
within the power of Congress, even if not included in the general
provisions of the acts regulating the 'coasting trade.'
7. That the right of Congress to regulate 'commerce with the Indian tribes,'
extends to and embraces the Penobscot tribe of Indians, and the
Legislature of Maine has no right to restrict the people to, or deprive them
of, any particular mode of intercourse or trade with them.
8. That any act of a State Legislature contravening such right of
navigation, as does the act set forth in defendants' bill of complaint, is
absolutely null and void.
The points made by the counsel for the defendant in error, were thus
stated:
The only question here is, whether the grant to Moor is in conflict with
that provision of the Constitution which gives Congress the right to
regulate commerce.
A party alleging that a State law is unconstitutional, takes on himself the
burden of establishing these three propositions:
First. That the matter or subject in controversy is within the legislative
jurisdiction of Congress.
Second. That Congress has de facto legislated on the subject, and
embraced it within regulations established by its legislation; and
Third. That the party impeaching the law, has himself acquired rights in
the subject-matter which is in controversy, and that these rights have been
invaded by the legislation of the State.

Applying these rules to this ease, plaintiffs are bound to show, First. That
the navigation of the Penobscot River, above Old-town Falls, is within the
jurisdiction of Congress.
Second. That Congress has embraced this navigation in its legislation, and
provided regulations for it; and
Third. That they have acquired rights in that navigation under the
legislation of Congress, which rights have been impaired by the law of the
State.
Plaintiffs must establish all three of these propositions. It is not enough for
them to establish any two of them. If they fail in any one of them, they
have no ground to stand upon.
1st. As to the first of these propositions. The grant being confined to
waters wholly internal, plaintiffs can carry on no navigation by means of
those waters, with any foreign nation, nor with any other State. We think
this is almost too plain for argument. Moor v. Veazie, 32 Maine Rep. 343;
Wilson v. Blackbird Co. 2 Pet. 250; 3 Kent's Com. 458; Livingston v. Van
Ingen, 9 Johns. Rep. 506; Gibbons v. Ogden, 17 Id. 488; Id. 9 Wheat. 1;
New Bedford Bridge case, 1 Wood. & Minot, 404; Kellogg v. Union
Company, 12 Conn. 7; Passenger case, 7 How. 283; Brown v. Maryland,
12 Wheat. 419; New York v. Miln, 11 Pet. 102; 3 Cowen, 713.
Again. This grant is not in conflict with the power of Congress to regulate
commerce with the Indian tribes.
1. Because commerce, in this connection, does not include navigation. 32
Maine, 343.
2. Because the constitution manifestly refers only to independent tribes
with which the general government may come in conflict; not to those
small remnants of tribes scattered over the country, which are under State
jurisdiction and guardianship. 32 Maine, 343.
2d. We hold that plaintiffs entirely fail to establish the second proposition,
to wit: That the navigation of these waters is embraced within the actual
legislation of Congress. None of the acts cited were ever intended to apply
to waters wholly within the limits of a State, and which could not be
reached by vessels from foreign ports, or from other States.
Again. We contend that if Congress has, or should pass any acts
interfering with commerce purely internal, they would be unauthorized

and void. Passenger case, 7 How. 283; Genesee Chief, 12 Id. 443.
3d. As to the third proposition, the case fails to show that plaintiffs have
acquired any rights in the navigation of the waters of the upper Penobscot,
under any regulation of Congress, or in any other way or manner.
Assuredly there can be no pretence that plaintiffs were engaged in any
commerce on those waters with any foreign nation, or with any other
State. Nor is there any fact or evidence in the case tending to show that
they were engaged in commerce with the Penobscot tribe. It does not
appear that they traded on had any intercourse with that tribe, nor that they
wished or intended to have any such intercourse. The Penobscots are not
represented here. They do not complain of the grant. There is no fact
going to show that this grant has any bearing or effect on any commerce to
which they are parties. If they have any ports of entry or clearance, for
aught the case finds, such ports may be as hermetically sealed as those of
Japan.
If plaintiffs fail to show that they have acquired rights which have been
taken away, they cannot complain, even if the act was most palpably
against the constitution. Wheeling Bridge case, 13 Howard, 518; East
Hartford v. Hartford Bridge Company, 17 Conn. Rep.
Mr. Justice DANIEL delivered the opinion of the court.

The questions raised upon this record, however subdivided or varied they may
have been in form or number, are essentially and properly restricted to the
power and the duty of this court, to inquire into the constitutional obligation of
the law of the State of Maine, upon which the decision of the Supreme Court of
that State was founded; for if that law and the privileges conferred thereby, be
coincident with the eighth section of article 1st of the constitution, they can be
assailable here upon no just exception.

It is insisted, however, that the statute of the State of Maine is in derogation of

the power vested in Congress by the article and section above mentioned, 'to
regulate commerce with foreign nations, and among the several States, and with
the Indian tribes.' We will examine the character of this objection with
reference to the facts disclosed by the record, and with reference also to the
provisions of the statute in question, as they have been designed to operate on
those facts; and as these last are all agreed by the parties, there can be no need
of a comparison of the testimony to ascertain their verity.

The River Penobscot is situated entirely within the State of Maine; having its
rise far in the interior of the State, it is not subject to the tides above the city of
Bangor, near its mouth. Between the city of Bangor and Old Town, a distance
of eight miles, the Penobscot passes over a fall, is crossed by four dams erected
for manufacturing purposes, and for the above space is not, at this time, and
never has been, navigable; but there is a railroad from Bangor to the steamboat
landing at Old Town. On the 30th day of July, 1846, the Legislature of Maine,
by law enacted, that 'William Moor and Daniel Moor, Jr., their associates and
assigns, were authorized to improve the navigation of the Penobscot River
above Old Town, and for that purpose, were authorized to deepen the channel
of the river, to cut down and remove any gravel or ledge, bars, rocks, or other
obstructions in the bed thereof; to erect in the bed, on the shore or bank of said
river, suitable dams and locks, with booms, piers abutments, breakwaters, and
other erections to protect the same; to build upon the shore or bank of said
river, any canal or canals to connect the navigable parts of said river, or (in case
it shall be deemed the preferable mode of improvement,) any railroads for the
like purpose.

After providing the modes of acquiring lands or gravel on the shores or in the
bed of the river, and for compensating the owners of property used in the
prosecution of the contemplated improvement, the act proceeds to limit the
time for the completion of the undertaking, within particular termini therein
named, to the period of seven years from its date; and farther requires that,
within the period thus limited, the grantees shall build and run a steamboat
between those termini, and shall, within the same time, make a canal and lock
around the falls of the river, or a railroad to connect the route above with that
below the falls.

Then follows section fourth of the statute, containing the provision objected to.
It is in these words: 'If said William Moor and Daniel Moor, Jr., their
associates and assigns, shall perform the conditions of this grant as contained in
the preceding section, the sole right of navigating said river by boats propelled
by steam from said Old Town so far up as they shall render the same navigable,
is hereby granted to them for the term of twenty years from and after the
completion of the improvement, as provided in the third section of this act.' The
defendant in error, who is assignee of the original grantees from the legislature,
having made certain improvements in the river by the removal of rocks, and by
deepening the channel in other places, so as to enable boats to run therein, with
two and a half feet less of water than was requisite for navigation previously to
these improvements, and all within the limit prescribed to him by law, built,
and on the 27th of May, 1847, placed upon the said river, the steamboat
Governor Neptune, and ran her from Old Town over the Piscataquis Falls, to a

place called Nickaton. In the spring of the year 1847, the defendant in error
placed on the river the steamboat Mattanawcook, and ran her to Lincoln, till
obstructions were removed by him at a place called the Mohawk Rips, above
the Piscataquis Falls; and has also built and is now running upon the river,
another steamboat called the Sam Houston, in addition to the Governor Neptune
and the Mattanawcook.
6

The plaintiff in error, Samuel Veazie, built the steamboat Governor Dana, and,
in conjunction with the other plaintiffs, Levi and Warren R. Young, ran her
upon the Penobscot River between Old Town and the Piscataquis Falls, from
the 10th day of May, 1849, until they were arrested by an injunction granted at
the suit of the defendant in error. The steamboat Governor Dana was enrolled
and licensed for the coasting trade, at the custom-house at Bangor. The
Penobscot tribe of Indians own all the islands in the Penobscot River above Old
Town Falls, some of which they occupy; and this tribe always have been, and
now are, under the jurisdiction and guardianship of the State of Maine.

Upon this state of facts agreed, the Supreme Judicial Court of Maine, after
argument and advisement, at its June term, 1850, decreed, that the plaintiffs in
error be perpetually enjoined to desist and refrain from running and employing
the steamboat Governor Dana, propelled by steam, for transporting passengers
or merchandise on said river, or any part thereof above Old Town, and also
from building, using, and employing, any other boat propelled by steam on that
part of the said river for that purpose, without the consent of the said Wyman
B. S. Moor, obtained according to law, until the said Moor's exclusive right
shall expire. The court farther decreed to the defendant in error, the sum of one
thousand and fifty-two dollars and forty-five cents, for damages and expenses
incurred by him, by reason of the interference with his rights on the part of the
plaintiffs in error.

Upon a comparison of this decree, and of the statute upon which it is founded,
with the provision of the Constitution already referred to, we are unable to
perceive by what rule of interpretation either the statute or the decree can be
brought within either of the categories comprised in that provision.

These categories are, 1st. Commerce with foreign nations. 2dly. Commerce
amongst the several States. 3dly. Commerce with the Indian tribes. Taking the
term commerce in its broadest acceptation, supposing it to embrace not merely
traffic, but the means and vehicles by which it is prosecuted, can it properly be
made to include objects and purposes such as those contemplated by the law
under review? Commerce with foreign nations, must signify commerce which
in some sense is necessarily connected with these nations, transactions which

either immediately, or at some stage of their progress, must be extraterritorial.

The phrase can never be applied to transactions wholly internal, between
citizens of the same community, or to a polity and laws whose ends and
purposes and operations are restricted to the territory and soil and jurisdiction
of such community. Nor can it be properly concluded, that, because the
products of domestic enterprise in agriculture or manufactures, or in the arts,
may ultimately become the subjects of foreign commerce, that the control of
the means or the encouragements by which enterprise is fostered and protected,
is legitimately within the import of the phrase foreign commerce, or fairly
implied in any investiture of the power to regulate such commerce. A
pretension as far reaching as this, would extend to contracts between citizen
and citizen of the same State, would control the pursuits of the planter, the
grazier, the manufacturer, the mechanic, the immense operations of the
collieries and mines and furnaces of the country; for there is not one of these
avocations, the results of which may not become the subjects of foreign
commerce, and be borne either by turnpikes, canals, or railroads, from point to
point within the several States, towards an ultimate destination, like the one
above mentioned. Such a pretension would effectually prevent or paralyze
every effort at internal improvement by the several States; for it cannot be
supposed, that the States would exhaust their capital and their credit in the
construction of turnpikes, canals, and railroads, the remuneration derivable
from which, and all control over which, might be immediately wrested from
them, because such public works would be facilities for a commerce which,
whilst availing itself of those facilities, was unquestionably internal, although
intermediately or ultimately it might become foreign.
10

The rule here given with respect to the regulation of foreign commerce, equally
excludes from the regulation of commerce between the States and the Indian
tribes the control over turnpikes, canals, or railroads, or the clearing and
deepening of watercourses exclusively within the States, or the management of
the transportation upon and by means of such improvements. In truth, the
power vested in Congress by article 1st, section 8th of the Constitution, was not
designed to operate upon matters like those embraced in the statute of the State
of Maine, and which are essentially local in their nature and extent. The design
and object of that power, as evinced in the history of the Constitution, was to
establish a perfect equality amongst the several States as to commercial rights,
and to prevent unjust and invidious distinctions, which local jealousies or local
and partial interests might be disposed to introduce and maintain. These were
the views pressed upon the public attention by the advocates for the adoption of
the Constitution, and in accordance therewith have been the expositions of this
instrument propounded by this court, in decisions quoted by counsel on either
side of this cause, though differently applied by them. Vide The Federalist, Nos.

7 and 11, and the cases of Gibbons v. Ogden, 9 Wheat. 1; New York v. Milne,
11 Peters, 102; Brown v. The State of Maryland, 12 Wheat. 419; and the
License cases in 5 Howard, 504.
11

The fact of procuring from the collector of the port of Bangor a license to
prosecute the coasting trade for the boat placed upon the Penobscot by the
plaintiff in error, (the Governor Dana,) does not affect, in the slightest degree,
the rights or condition of the parties. These remain precisely as they would have
stood had no such license been obtained. A license to prosecute the coasting
trade, is a warrant to traverse the waters washing or bounding the coasts of the
United States. Such a license conveys no privilege to use, free of tolls, or of any
condition whatsoever, the canals constructed by a State, or the watercourses
partaking of the character of canals exclusively within the interior of a State,
and made practicable for navigation by the founds of the State, or by privileges
she may have conferred for the accomplishment of the same end. The attempt
to use a coasting license for a purpose like this, is, in the first place, a departure
from the obvious meaning of the document itself, and an abuse wholly beyond
the object and the power of the government in granting it.

12

Upon the whole, we are of the opinion that the decision of the Supreme
Judicial Court of the State of Maine is in accordance with the Constitution of
the United States, and ought to be, and is hereby, affirmed.

Order.
13

This cause came on to be heard on the transcript of the record from the
Supreme Judicial Court of the State of Maine, and was argued by counsel. On
consideration whereof, it is now here ordered and adjudged by this court, that
the judgment of the said Supreme Judicial Court in this cause be, and the same
is hereby, affirmed with costs.